(CNSNews.com) – Attorneys for David Daleiden and the Center for Medical Progress (CMP) cited a recent federal court ruling “on exposing misconduct to the public eye” in an Idaho animal rights case as a defense against a federal lawsuit filed by the National Abortion Federation (NAF).
The lawsuit filed by the abortion trade association in San Francisco on July 31, 2015 accuses Daleiden and CMP of fraud, racketeering and “corporate espionage” for posing as employees of Biomax, a fictitious tissue procurement firm, and surreptitiously taping NAF members at their annual conventions in 2014 and 2015.
NAF called CMP's investigative project an “admitted, outrageous conspiracy to defraud…for the purposes of intimidating and harassing providers of abortion care services to women, and to end access to reproductive health services in America.”
However, a brief filed Dec. 4, 2015 on behalf of Daleiden and CMP by the Life Legal Defense Foundation, the Thomas More Society, and the Bopp Law Firm cited an Aug. 3, 2015 ruling in Animal Legal Defense Fund v. Otter.
The ruling struck down Idaho’s ag-gag law, which made it illegal for undercover investigators to lie in order to gain access to agricultural operations for the purpose of recording the mistreatment of farm animals.
“The lies used to facilitate undercover investigations actually advance core First Amendment values by exposing misconduct to the public eye and facilitating dialogue on issues of considerable public interest,” U.S. District Court Judge Lynn Winmill wrote in the animal rights case. “This type of politically-salient speech is precisely the type of speech the First Amendment was designed to protect.”
“In carrying out the Human Capital Project, Daleiden and CMP uncovered and exposed significant evidence of unlawful activity in the abortion industry,” according to the defense brief.
“This evidence included widespread tolerance for, and open willingness to participate in, activities that are clearly illegal under federal law and the law of most states, such as the sale of fetal tissue for profit and the alteration of abortion methods to procure fetal tissue specimens.”
The brief also argued that “the means employed by CMP were standard for investigative reporting: the creation of a new identity; props and costumes to fit the role; the promise of a financial benefit in order to engage the targets of the investigation; hidden cameras and recorders, and, of course, the concealment of one’s true purpose.”
The NAF lawsuit also accused Daleiden and CMP of violating a confidentiality agreement “not to disclose information learned at the meeting to third parties without NAF’s consent.”
But CMP’s legal team argued that the recorded conversations took place in public hallways where NAF members had no expectations of privacy. And in a sworn declaration filed with the court on Dec. 4, 2015, Daleiden stated: “Through my prior discussions with attorneys, I understood that no nondisclosure agreement is valid in the face of criminal activity.”
On July 31, 2015 U.S. District Court Judge William Orrick issued a temporary restraining order forbidding CMP from publishing over 500 hours of undercover video and audio recordings taken during NAF’s 2014 and 2015 annual meetings, which were attended by hundreds of abortion providers, academics and advocates.
The Reporters Committee for Freedom of the Press sent Judge Orrick a letter on Sept. 3, 2015, noting that “any prior restraint on speech that is issued by a court has the potential to significantly affect the First Amendment rights of the news media and the public at large. The ramifications of having such a restraint in place go well beyond the unique facts of this dispute.”
On Oct. 7, 2015 Orrick allowed CMP to release all unedited undercover videos to the House Committee on Oversight and Government Reform in response to a congressional subpoena, but not to the general public. NAF has asked the court to hold Daleiden in contempt of court for responding to the subpoena.
“This is a freedom of the press issue on a matter that is the subject of great public concern,” Thomas More Society attorney Peter Breen told CNSNews.com.
“NAF is desperately trying to keep all the videos under wraps. NAF doesn’t want their members’ names released because there’s all sorts of evidence of wrongdoing and bad practices.”
Breen believes NAF’s lawsuit against CMP is a “proxy fight on behalf of Planned Parenthood,” NAF’s largest member. PP employees were videotaped by CMP discussing the dissection and sale of aborted baby parts.
“If Planned Parenthood sued, it would be subject to discovery over its own practices across the country selling baby body parts,” Breen explained. “NAF’s lawsuit may insulate PP by putting the legal action a step away.”